Amy, Josette and Suzanne, ophthalmic technicians, are unhappy with one of their colleagues, Pam, who is frequently absent. Her absences create extra demands on their time and workload. Amy, along with a few of her colleagues complained to Janna, their office manger; however, nothing was done. The following Saturday Pam called in sick…again! Several days later, Amy posted the following on her Facebook wall “Pam called in yet again. Once again we had to scramble to cover the patient load. If anyone has additional details about Pam’s absence this past Saturday or any of her other missed days please contact me.” One of Amy’s Facebook “friends” gave a copy of the posting to Janna.

Amy’s Employee Handbook contained the following Social Media Provisions:

Rule 4: Employees are prohibited from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.

Rule 5: Employees shall not communicate or post anything that could constitute harassment, embarrassment, or defamation of the medical practice or of any employee, representative or staff member.

Rule 6: Employees are prohibited from making any statement that lacks truthfulness or that might damage the reputation or goodwill of the practice, its staff or employees.

A week later Janna fired Amy for her Facebook posting because her posting violated the above terms of her Employment Handbook.

Amy files a complaint with the National Labor Relations Board. Who should prevail in this action, Amy or ABC Eyes, LLC.?

If you are like most medical practices you either use a stand alone social media policy or you address social media policies in your Employment Agreement, but how many of you have taken the time to make sure the provisions contained in your agreements are enforceable/legal? Now is the time to dust off your agreements and read them to make sure you can actually enforce the provisions contained within your Agreements.

So before you decide to terminate your “scumbag” commenting employee you dust off your Agreement and find you have the following two provisions in your social media policy:

“Employees may not make disparaging remarks when discussing the medical practice or supervisors and from depicting the practice in any media, including but not limited to the Internet, without company permission.”

“Employees are prohibited from posting pictures of themselves in any media, including the Internet, which depict the Practice in any way, including their practice uniform/scrubs or logo.”

Clearly being referred to as a “Scumbag” is a disparaging remark, right? While it would seem to qualify as a disparaging remark you need to remember that that fact alone does not necessarily mean you can fire your employee.

Questions You Should Consider BEFORE Taking any Action:

Where were the remarks made?

When were they made?

Why were they made?

To Whom?

Did a conversation result?

If yes, who was participating in the conversation?

Why do I Need to Ask any Questions? My employees are At-Will?

An exception to at-will employment is that you cannot fire an employee if your basis for firing them violates a federal law. Have you ever heard of the National Labor Relations Act ( NLRA)? If not, then you should know that if you terminate an employee and the basis for your termination violates the NLRA you might be forced to re-employ the employee and pay them any back wages owed. Do I have your attention now? Back to our example.

Additional Facts that Led to “Scumbag” Comment:

Where was the “Scumbag” comment made? On Facebook.

When was the “Scumbag” comment made? At home, on the employee’s personal computer.

Why were they made: You asked the employee to prepare an incident report concerning a patient complaint. She requested union representation and was denied. You then threatened her with discipline when she tried to invoke her right to representation. (Don’t tune-out…it doesn’t matter whether you have a unionized workplace or not)

To whom: Her Facebook friends, to include co-workers.

Did a conversation start? Yes.

Who participated? Co-workers participated in an on-line discussion of your supervisory action.

You fired the employee and she filed a complaint with the National Labor Relations Board. Here’s what they found:

Both policies were found to be unlawful. For our purposes, it is important to realize that in this example the employee, while off duty, was discussing the terms and conditions of employment with co-workers. This type of activity is protected under section 8 (a) (1) of the NLRA. Had you taken the same employment action you would now be posting a notice at your work site, bringing the employee back to work, and providing them with all back wages due.

I am an attorney, but I am not your attorney. Anything on this blog or in this post should not be construed as legal advice or legal services. If you have an employment law question, you should consult your attorney.

The end of the Chicago teacher’s strike brought to mind the fact that many well-meaning employers often lose sight of their end goal. So what do the Chicago teacher’s strike and your medical practice have in common?

For ease of discussion, lets surmise that Chicago teachers felt that their problems/challenges were not being addressed by their current collective bargaining agreement. Now let me ask you…how many of your employees feel that you welcome their opinions and are committed to working together to make your medical practice the premier provider and employer in your community?

NOTE: A collective bargaining agreement sets out the terms and conditions of employment much like an employee agreement, handbook or manual.

How many medical practices have employee agreements or handbooks? Most, I would hope. Assuming you have an agreement, have you or your office manager taken the time to find out how your employees feel about the provisions that make up your agreement? Do your employees even understand the terms of their employment? Did anyone sit down with them when they were hired and explain the terms in language they could understand and yes, that would mean using non-lawyer speak and using real life examples? From my experience, the answer is that very few employers take the time to engage with their employees to discuss the conditions of their employment…that is, until there is a problem.

Office Meetings: Worthless unless Communicated from the Employee’s Point of View

I know many of you will disagree with me on this, but try to put yourself in your employees place. For example, who prepares the agenda for your weekly/monthly meetings? Do employees have an anonymous way to convey concerns or recommend agenda items? Once you meet, how much time is allocated to the concerns of management? Employee concerns? A key point to keep in mind is that your employees don’t really care about your issues or that of the medical practice unless they feel they are part of the practice. Therefore, a rule of thumb is that only 20% of the agenda should focus on the individual physician or their practice. 80% of the meeting should focus on the employee, their thoughts, ideas and concerns. This is not to say 80% of the meeting is spent discussing non-practice related issues; rather, it means that the way in which those issues are communicated should be from the employee’s perspective. If done correctly, this will allow for employee engagement and buy-in to whatever end result is agreed upon.

Create Lasting Relationships with Your Employees FIRST

…..this in turn will create lasting relationships with your patients.

Having spent the last eight years working with management and unions to solve workplace issues I believe the key to success is to have regular, open communication. Open communication leads to mutual respect for one another and will shift the focus from the individual concerns of you, your practice or your employee to what really matters and that is the desired goal. If done correctly, this shift will change the overall tone of your practice and unify your practice in ways you never thought possible.

To Your Success,

Amy

I am an attorney, but I am not your attorney. Anything on this blog or in this post should not be construed as legal advice or legal services. If you have an employment law question, you should consult your attorney.